The grand jury indicted the defendant on December 1, 2006 on the basis of two days of testimony, consisting of five witnesses, and transcripts of twenty-eight telephone calls intercepted by law enforcement. Anthony Pino (“Pino”), a bookmaker in the North End of Boston (“North End”), testified on both days. On October 20, 2006, the first day of testimony, Pino testified that he took “numbers” from about fifteen customers on a regular basis and placed them with the office of Joseph Settipane (“Settipane”). Pino stated that he was Settipane’s employee. He split profits from the bets fifty-fifty with Settipane but would sometimes pay additional “administrative costs.” When Settipane wanted such costs, he said to Pino, “[w]e got to put down a hit.” The “hit” was $500. Pino understood that the $500 went toward “protection” for the gambling operation. He stated that he knew who the defendant was but was unsure of the nature of the relationship between the defendant and Settipane. When asked if the defendant was the “boss” of organized crime in Boston, he responded that he had heard that rumor but “[t]hem days, there was guys jockeying for position.”

On December 1, 2006, the second day of testimony, Pino was clearer about the defendant’s relationship with Settipane. He testified specifically that the $500 was actually paid to the defendant through Settipane. This arrangement between the defendant and Settipane is further evidenced by a telephone call between Settipane and Pino in which Settipane states that he would see “him in the morning over there” to pay him the $500. That the “him” in the conversation was the defendant was corroborated by Trooper Nunzio Orlando (“Trooper Orlando”), the lead investigator on the case. Pino also testified that the payment brought him under the defendant’s umbrella of protection. Pino stated that he had no choice but to pay.

Joseph Vito Amato (“Amato”), a Medford bookmaker, testified before the grand jury about a “shooting” scheme devised by Gregory Costa (“Costa”), John Scarpelli (“Scarpelli”), and Salvatore Marino (“Marino”) into the bookmaking office of Jaime Candelino (“Candelino”). “Shooting,” Amato explained, is when an individual places a bet with a bookmaking office and collects if he wins but does not pay if he loses. Scarpelli came up with the scheme when Amato asked for help collecting on a loan he had given to Candelino. Amato testified that Costa, Scarpelli, and Marino were associated with the defendant and that they and the defendant were reputedly associated with La Cosa Nostra. As such, Amato knew the shooting scheme would work because he believed Candelino was afraid of them. Amato explained that, in furtherance of the scheme, he introduced Scarpelli to Candelino – Scarpelli placed bets with Candelino – and, when Scarpelli lost, he refused to pay. Candelino objected to the nonpayment stating “he had people to pay” and he was “kicking in somewhere else.”

Amato stated that Candelino’s “somewhere else” was Settipane’s office. Candelino was working with Settipane. In a telephone call, recorded on October 21, 2001, in which Candelino complained about the “shooting” to Thomas Verona (“Verona”), a Settipane clerk, Verona stated: “Don’t worry, Joe [Settipane] will take care of it . . . Joe will go to Carmen [the defendant].” The two further discussed the fact that Costa, Scarpelli, and Marino would have to comply with whatever decision the defendant made. If the defendant told them to pay, they would have to pay. The penalty for noncompliance was explained in an earlier October 3, 2001 conversation between Candelino and Verona in which Candelino stated: “You know what Carmen [the defendant] would do . . . he woulda, he woulda got the wrath of God from Carmen [the defendant].”

In an October 22, 2001 telephone call, Verona told Candelino that Settipane was going to meet with the defendant to discuss the shooting scheme. The next morning physical surveillance recorded Settipane with the defendant outside of the defendant’s cheese shop on Endicott Street in the North End. Later that day, in a telephone call intercepted between Costa and William Angelesco (“Angelesco”), another local bookmaker, Angelesco stated that the defendant was going to tell Costa to “pull it in a little bit.” An hour later, Angelesco told Costa to meet the defendant at “the beach.” Angelesco also told Costa that he assured the defendant: “Don’t worry, whatever Costa does, he runs everything by you, first.”

Amato also testified that he gave Costa, Marino, and Scarpelli the name of John Forziati (“Forziati”), a manager at the Ninety-Nine Restaurant in Lynnfield (“Ninety-Nine”) and yet another local bookmaker, as someone who was taking “big action.” He testified that they attempted to shake down Forziati in order to get money from his “action.” Amato stated that he heard Costa, Marino, and Scarpelli had “shook down” other bookmakers and drug dealers in the Medford/Somerville area as well. He stated that in order to shake down a bookmaker, however, they would have needed the defendant’s permission because “[i]t’s just the way it works.”

Forziati then testified before the grand jury that he placed bets through Richard Settipane (“Richie”), Settipane’s nephew who ran his own bookmaking operation. He explained that Costa, Scarpelli, and Marino came into the Ninety-Nine and told him: “If you and your guys were placing bets, you should do it through us, and not to who your going through.” Forziati stated that he was uncomfortable with the encounter because of their imposing presence but that he did not know that Costa, Scarpelli, and Marino had violent reputations. He also stated that he did not fear them. Forziati complained to Richie about the incident and stopped calling in bets as a result. Forziati stated that he had never heard of the defendant.

In an October 20, 2001 telephone call between Richie and Settipane, Richie and his uncle discussed protection for Forziati. On that same day, in another telephone call between Candelino and Verona, Verona criticized the defendant for his failure to discipline Costa and the others. Verona relayed what he had said to Settipane: “Why’s Carmen [the defendant] sending him [Costa] out doin’ situations like this if he knows he’s a loose cannon.”

The defendant was also called upon to mediate a dispute over Angelesco beating an individual named Lilo Fabo (“Fabo”). Fabo allegedly “targeted” a Medford drug-dealer who was under the protection of Angelesco. As a result, Angelesco attacked Fabo violently. Fabo “somehow” reached out to the defendant for help. In an October 25, 2001, conversation between Cono Frizzi (“Frizzi”) and Angelesco, Frizzi stated that he had defended Angelesco’s attack of Fabo to the defendant. Frizzi also stated that the defendant wanted to meet with Angelesco to discuss the incident. Later that evening, physical surveillance recorded the defendant meeting with Costa, Frizzi, and Angelesco at the Pizzeria Uno in Revere.

In a November 23, 2001 telephone call between Angelesco and Frank Cinseruli (“Cinseruli”), a Costa clerk, Cinseruli took objection to the way Angelesco was placing bets. The next day the two argued when Angelesco attempted to place a bet for a 7 p.m. game five minutes after 7 p.m. A shouting match ensued and Cinseruli exclaimed: “You know what, I’m going to quit and I’m going to tell Costa and Carmen [the defendant] why it is I’m quitting, it’s because of you.” Days later, on November 30, 2001, in a telephone call between the defendant and Angelesco, the defendant asked Angelesco to meet him in the Dunkin Donuts parking lot in Somerville.

Trooper Orlando, a thirteen-year veteran of the Massachusetts State Police who specializes in organized crime investigations, then provided a comprehensive assessment of the entire investigation. Trooper Orlando discussed the fact that organized crime investigations concentrate on traditional organized crimes – especially gambling, loan sharking, and extortion. He set forth the basic investigative techniques, including physical and electronic surveillance, interrogation of individuals arrested and charged, and use of confidential informants. He then testified about the structure of the organized crime hierarchy. He explained that at the bottom level are street bookies who place bets with agents for larger bookmaking offices. The agents place their bets with the larger bookmaking offices through “clerks” – and “then you have a central bookmaking office.”

Trooper Orlando testified that Pino was a bookmaker associated with Settipane, who ran a large gambling operation. He then explained that in 2001, he obtained a wiretap for telephones being used by Settipane and Verona. He also obtained wiretaps for the telephones of Costa, Angelesco, and Frizzi, along with several other individuals. He obtained search warrants for Settipane’s house, Costa’s apartment, Candelino’s house, Pino’s house, and others. As a result, Trooper Orlando seized significant evidence of a gaming operation. Verona, Pino, Candelino, Costa, and others were indicted on gaming charges. Trooper Orlando also discussed several telephone calls that were intercepted. Many of the significant portions of those calls are incorporated into the facts above.

Additional evidence presented also allows the inference that the defendant was acting boss of the Boston faction of La Cosa Nostra. For example, in the October 3, 2001 conversation between Verona and Candelino discussed above, Candelino stated that in the absence of Mark Rosetti, who was serving time in prison, the defendant was acting boss of Boston organized crime. On April 27, 2006, Rhode Island State Police followed Louis Manocchio from Rhode Island to Sharon, Massachusetts where they observed him meet with the defendant. This is significant because Menocchio is alleged to be the leader of the New England faction of La Cosa Nostra. In a October 23, 2001 conversation between Angelesco and Frizzi, Angelesco stated that “New York” recognizes “Menooch” as the boss in Boston. Trooper Orlando stated that “Menooch” is the defendant. Additionally, Frank Amato, a nightclub owner in Saugus, testified that it would be “fair to say” that the defendant has a “reputation that precedes him.”

DISCUSSION

In Commonwealth v. McCarthy, the Court carved out a narrow exception to the rule that “generally a ‘court will not inquire into the competency or sufficiency of the evidence before the grand jury.’ ” 385 Mass. at 161-162, quoting Commonwealth v. Robinson, 373 Mass. 591, 592 (1977). In that case, the Court held that “at the very least the grand jury must hear sufficient evidence to establish the identity of the accused . . . and probable cause to arrest him” or the indictment should be dismissed. Id. at 163. The standard for probable cause “ ‘requires more than mere suspicion but something less than evidence sufficient to warrant a conviction.’ ” Commonwealth v. Roman, 414 Mass. 642, 643 (1993), quoting Commonwealth v. Hason, 387 Mass. 169, 174 (1982); Commonwealth v. O’Dell, 392 Mass. 445, 451 (1984) (probable cause is “considerably less exacting than a requirement of sufficient evidence to warrant a guilty finding”). “The evidence before the grand jury must consist of reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense.” Roman, 414 Mass. at 643. These considerations “ ‘are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ” Hason, 387 Mass. at 174, quoting Brinegar v. United States, 338 U.S. 160, 175 (1949). In short, this Court is not considering whether the presentment to the grand jury in this case would allow the Commonwealth to survive a motion for a required finding of not guilty. See Commonwealth v. Murphy, 68 Mass. App. Ct. 152, 154 (2007), citing O’Dell, 392 Mass. at 450-451. Rather, the specific issue is whether the presentment consisted of enough evidence to constitute probable cause that the defendant committed the crime of extortion. See McCarthy, 385 Mass. at 163.

I. EXTORTION

The crime of extortion occurs when an individual “by a verbal or written or printed communication maliciously threatens an injury to the person or property of another . . . with intent thereby to extort money or any pecuniary advantage, or with intent to compel any person to do any act against his will.” G. L. c. 265, 25. The essential elements of the crime are (1) a malicious threat; (2) of personal injury; (3) made to a named person; and (4) with intent to extort money. Commonwealth v. De Vincent, 358 Mass. 592, 595 (1971). The defendant argues that the Commonwealth’s presentation of evidence was insufficient because Settipane’s statement “[w]e got to put down a hit” did not constitute a malicious threat within the context of Pino and Settipane’s “collaborative” relationship. The issue is whether the defendant’s role in the demand transformed it into a malicious threat for purposes of probable cause.[1] The Court holds that it did.

Whether a statement constitutes a threat depends on the “ ‘context in which the allegedly threatening statement was made and all of the surrounding circumstances.’ ” Commonwealth v. Gittens, 55 Mass. App. Ct. 148, 154 (2002) (defendant’s statement “I’m going to get you” constituted an express threat), quoting Commonwealth v. Sholley, 432 Mass. 721, 725-726 (2000) (defendant’s statement “Watch out, Counselor” constituted a threat because it was screamed in an angry tone). Factors to consider include “[d]emeanor and tone[,] . . . the personal history of the speaker, the relationship of the parties, and the timing, subject matter, location, and other conditions of the exchange.” Gittens, 55 Mass. App. Ct. at 154. Although “the state of mind of the person threatened is not controlling,” De Vincent, 358 Mass. at 595, it is “highly relevant” evidence of a threat. Commonwealth v. Matchett, 386 Mass. 492, 501 (1982), citing Commonwealth v. Winter, 9 Mass. App. Ct. 512, 528 (1980).[2]

In Commonwealth v. De Vincent, the Court held that the defendant’s demand for a $4,000 payment from the victim constituted a sufficient threat under the circumstances to sustain an extortion conviction. 358 Mass. at 593, 595-596. In that case, the defendant, accompanied by a “big, bald-headed man [who] looked like a wrestler,” told the victim that “Lou Ricci says you owe him $4,000.” Id. at 593. The defendant then stated that if the money was not paid within ten days, the victim would have “crapped out.” Id. The victim testified that he did not know the meaning of the words “crapped out” and that he was not, in fact, threatened by the defendant’s statements. Id. at 596. Despite the victim’s testimony, the Court upheld the jury’s determination that the statement constituted a threat because of the defendant’s physical appearance, the presence of the big, bald-headed man, and the defendant’s inflection and phrasing when he made the demand for money. Id. According to De Vincent, a demand for money combined with a valid inference of harm constitutes a threat for purposes of extortion. See id.

A. THE PERSONAL HISTORY OF THE DEFENDANT

One of the factors the Court considers in determining whether a particular statement constitutes a malicious threat is the personal history of the speaker. See Gittens, 55 Mass. App. Ct. at 154. Here, the relevant inquiry is the personal history of the defendant as imputed to Settipane’s words based on Settipane’s status as the defendant’s agent. The evidence presented to the grand jury supports an inference that the defendant was the boss of organized crime in Boston. The defendant argues that such evidence is irrelevant to the extortion charge. To the contrary, such evidence allows the inference that the defendant used fear and intimidation as a means of capitalizing on the illegal markets of drug dealing and gambling. Under the circumstances, this is relevant as to whether Settipane’s demand, on the defendant’s behalf, constituted probable cause sufficient for the grand jury to have found a malicious threat. See Gittens, 55 Mass. App. Ct. at 154.

i. Costa Complaints

The defendant’s role in disciplining Costa allows the inference that the defendant commanded a significant amount of authority over illegal activity. Settipane believed that Costa had overstepped his boundaries in two instances – with Candelino, who was directly protected by Settipane, and with Forziati, who worked with Settipane’s nephew. Both situations involved proceeds from illegal gambling operations. Evidence that Settipane sought out the defendant to resolve the first dispute and that the defendant had the ability to resolve the second dispute suggests that the defendant had control over the gambling operation as a whole. That Costa was supposed to run everything by the defendant further evidences this fact. Candelino’s statement that the defendant would bring down the “wrath of God” as a method of discipline evidences the violent nature of the defendant and the enforcement mechanisms he used to run the gambling operation.

ii. Angelesco Complaints

The defendant’s role as mediator in the two complaints levied against Angelesco suggests a similar conclusion. The evidence allows the inference that Cinseruli asked the defendant to speak with Angelesco about calling his bets in late and also that the defendant was asked to speak with Angelesco regarding his beating of Fabo. This suggests that the defendant had control over both gambling and the drug trade, because Fabo had “shaken down” a drug dealer. That the defendant was called in to mediate the use of violence in illegal trades also suggests that his control extended to the use of violence by individuals plying such trades. In other words, if unsanctioned violence was used in gambling or drug dealing and a complaint was lodged, like with Angelesco, the defendant would get involved.

In addition to the defendant’s role in the Costa and Angelesco complaints, the defendant’s general reputation as the boss of organized crime in Boston allows the inference that he maintained personal control over the daily operations of illegal gambling and drug dealing operations throughout Eastern Massachusetts. See G. L. c. 272, § 99. Fear and violence are ordinarily employed as tactics to maintain control over such operations. See id.[3] This is the context in which Settipane demanded payment from Pino. As such, the defendant’s personal history as a leader of organized crime provides valuable insight into whether there is probable cause to believe that there was a threat of physical harm behind the words: “We got to put down a hit.”

B. THE VICTIM’S STATE OF MIND

One can also infer – both objectively and subjectively – that Pino feared the repercussions of noncompliance with Settipane’s demand. While not conclusive of a malicious threat, see Matchett, 386 Mass. at 500-501, such evidence provides “more than mere suspicion” of the defendant’s guilt. See Roman, 414 Mass. at 643. Especially when combined with the personal history of the defendant, see Gittens, 55 Mass. App. Ct. at 154, Pino’s fear is sufficient to support the extortion charge.

i. Objective Fear

First, Pino’s knowledge of the defendant supports the inference – at least objectively – that he feared physical harm if he did not comply with Settipane’s demand. Pino knew the $500 “hit” was being transferred from Settipane to the defendant to protect his gambling business. Pino also thought that the defendant was “jockeying” for the position as boss of organized crime in Boston. Settipane’s demand was made within the context of an illegal gambling venture. Where Pino believed the demand was made on behalf of the potential boss of organized crime, it can be inferred that he believed noncompliance carried with it a threat of harm. See United States v. Madori, 419 F.3d 159, 167 (2nd Cir. 2005) (“[A] debtor’s belief that a creditor is connected to organized crime may be introduced since it evidences the debtor’s understanding that a threat of violence exists.”). This is a reasonable inference because physical harm may be the only device by which a criminal boss can discipline his employees and targets. See id. at 166-167 (explaining that a loan that is unenforceable through civil judicial process is likely to have been obtained through extortionate means). Pino’s understanding of the defendant’s role in the demand and in the world of organized crime places the request in its proper context – a world in which noncompliance results in physical harm. See Gittens, 55 Mass. App. Ct. at 154.[4]

ii. Subjective Fear

Second, there is sufficient evidence to infer Pino’s subjective fear of physical harm. The fact that Settipane did not use words specifically describing physical harm against Pino does not change the meaning Pino attributed to the demand. See De Vincent, 353 Mass. at 595-596. When combined with Pino’s statement that he had “no choice” but to pay the $500, the lack of violent words merely demonstrates Pino’s obedience. In other words, Settipane did not resort to violent words because he never had to. As such, Pino’s obedience speaks more to his subjective fear of physical harm than any lack of a threat. See Matchett, 386 Mass. at 501.

The violent undertones of Settipane’s demand supply the context for the words. Cf. De Vincent, 353 Mass. at 595-596 (demand for money and statement that defendant would have “crapped out” if he did not pay was threatening when all factors were considered). “We got to put down a hit,” which represents a clear demand for money, carried with it a reasonable inference of harm to Pino if he did not comply. As such, the personal history of the defendant and the victim’s state of mind relative to the demand transformed Settipane’s demand into a threat. See id.; Gittens, 55 Mass. App. Ct. at 154.

II. PREJUDICE

The defendant also argues that the grand jury proceedings were impaired by the Commonwealth’s presentation of improper “reputation” evidence against the defendant and “prejudicial”testimony from Trooper Orlando. While it is true that indictments may be dismissed in narrow circumstances if “unfair and misleading” evidence has been presented to the grand jury, O’Dell, 392 Mass. at 446-447, the defendant carries a “heavy burden” to demonstrate that the proceedings were impaired. Commonwealth v. LaVelle, 414 Mass. 146, 150 (1993); Commonwealth v. Kelcourse, 404 Mass. 466, 468 (1989). To meet this burden, the defendant must show: (1) that the evidence presented was false or deceptive; (2) that the prosecutor knew it was false or deceptive; and (3) that the evidence probably prejudiced the grand jury’s decision to indict the defendant. Mayfield, 398 Mass. at 621-622. As stated above, the evidence objected to by the defendant was relevant to provide the context of Settipane’s demand. It was prejudicial only in the appropriate sense that it supports the Commonwealth’s case. In addition, much of the evidence was relevant to the gaming charges. See G. L. c. 271, 16 (a), G. L. c. 274, 7. As such, the defendant’s argument that the grand jury proceedings were impaired is without merit.

ORDER

It is therefore ORDERED that defendant’s motion to dismiss be DENIED.

_____________________________

David A. Lowy

Justice of the Superior Court

DATED: November ____, 2007.

FOOTNOTES:

[1] It is important to note that the Commonwealth presented sufficient evidence to infer that Settipane was the defendant’s agent for purposes of the indictment. Commonwealth v. Ortiz, 424 Mass. 853, 856-857 (1997) (explaining that joint venture can exist even where the defendant was not present during the crime). This point is not challenged by the defendant.

[2] While several of these cases cited are not extortion cases, the explanation of threats in non-extortion cases has been applied to the analysis of threats under the extortion statute. See Commonwealth v. Cacchiotti, 55 Mass. App. Ct. 499, 503-504 (2002) (applying Gittens and Sholley to extortion case). In Cacchiotti, however, the Court interpreted the portion of the extortion statute that applies to extortion by public officials and police officers, therefore, it is not directly applicable to these facts as urged by the Commonwealth. Id. at 502-503.

[3] This statute, which permits judicially authorized electronic surveillance under certain circumstances, recognizes in its preamble that “organized crime exists in the commonwealth . . . among highly organized and disciplined groups to engage in supplying illegal goods and services.” G. L. c. 272, § 99. The statute further states that “[i]n supplying these goods and services organized crime commits unlawful acts and employs brutal and violent tactics.” Id.

[4] While it is true, as the defendant argues, that a threat under the extortion statute cannot be based on non-verbal communication of bodily harm, Matchett, 386 Mass. at 499, citing Robinson v. Commonwealth, 101 Mass. 27, 28 (1869) (reversing conviction where indictment contained no averment that the threats charged were made in verbal or written form), Settipane’s demand for money was made verbally, and it is that communication and its implications under the circumstances that the Court holds constitutes a threat.

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